Recent weeks have presented events, locally and internationally, where the moral response to violence appears to hinge only on their arbitrary classification as ‘terrorist’ forms.
This meant that it was more difficult to categorise even egregious political violence as an act of “terrorism” without first making a definitive case to show why a particular breach of law should be classified thus.
A fundamental function of law — and politics — is to classify violence: First, into categories of necessary violence, typically performed by the state (detentions, capital punishment, violence inflicted to preserve national security, or the state’s right to pre-emptive or retaliatory strikes); or of lesser violence (self-defence, grave provocation, etc), and finally, violence without justification (inflicted by private citizens).
Law (and political discourse) further classify the last category into hierarchies. Law’s categorisations are, for the most part, commonsensical. Political categorisations can be more utilitarian, deliberately muddying the distinction between “law and order breaches” and “state security”.
A review of the Indian National Crime Records Bureau (NCRB) Reports between 2004 and 2019 show that the earlier copies have a chapter on “violent crimes”, subcategorised into “violent crimes affecting the body — murder, kidnapping, etc.”, “violent crimes affecting public safety — riot, arson”, and “violent crimes affecting property”. The chapter then mentions “motives behind violent crimes” and identifies “personal vendetta” along with structural reasons like “caste conflicts”, “communalism”, and “terrorist and other extremist violence” — which referred primarily to violent separatists. Communal, caste and class-motivated violence were grouped together, and, thus, hierarchically the same as “terrorist or extremist” violence. Remarkably though, the scale of the latter was much lower — it accounted for 3.1-3.3 per cent of violent crimes, whereas caste-related violence accounted for up to 35.9 per cent of deaths in some states, and communal and class conflicts for up to 50 per cent violent deaths in others.
In the more recent reports, the section on “violent crimes” has a new nomenclature: “Offences against the human body”. The subsection on “violent crimes affecting public safety” is now called “offences against public tranquility”. It shifts the focus from the safety of people during a riot to a breach of tranquility, although in effect they refer to similar incidents.
While caste, class and communal violence are now reflected in the section on “murder”, “terrorist and extremist” offences have got a chapter of their own titled “offences against the state”. It includes disparate acts ranging from crimes of “sedition” to “imputations, assertions prejudicial to national integration” (typically speech acts), to misdemeanours relating to damage to public property, and, finally, crimes under the Unlawful Activities Prevention Act and the Official Secrets Act. This rearrangement achieves two things: It distinguishes “terrorism” from other violent crimes, without presenting any measure of distinction, and it implies that such acts are those that are solely directed against the state/government, and form a continuum from dissenting speech to physical violence.
In Nalini’s case, the state had also argued that the assassination had political fallouts. The Court ruled that there was evidence only to prove that it was motivated by hatred in the person of the former prime minister. The person of a leader, and the state, are not the same, as per the SC, and an offence against one may not be an offence against the other.
The NCRB report lays down the norm where only certain forms of violence (on a sliding continuum) are seen as threats to the state’s security. Even the courts seem to accept it, at least at the outset, allowing for visible shifts in due process practices.
There is also a new chapter on “crimes by “anti-national” elements, which enumerates ordinary offences by “anti-nationals”, “North-East insurgents”, “Naxalites and left-wing extremists” and “terrorists including Jihadi terrorists”. It is a curious chapter, reminiscent of the colonial Criminal Tribes Act, which creates vague, but evocative categories of alleged criminals.
There is much public debate on effective responses to “terrorism”, but significantly less discussion on the shifting meanings assigned to it , which is an exercise of power.
International humanitarian law recognises “war crimes” as a legal category. As per the Geneva Convention of 1949, there is a commonly recognised list of acts proscribed in armed conflicts. This applies to both state and non-state actors, and to internal and international conflicts. On the other hand, “terrorism” is not universally defined in customary international law. Violent events being categorised as “terrorist” is more a political than a legal act.
One of those recently raided in Delhi gave a disturbing testimony in the media: “The raiding party said that we have sanction from our superior to use brute force if you don’t cooperate in handing over your phones and other devices”. In rule of law, a superior’s sanction is not sufficient. In situations which are becoming the norm, investigating authorities search, seize and arrest on the threat of brute force.
Similarly in the context of Gaza, the axis of violence has again shifted from the “terrorist” to the state. If the law and the state did not have a monopoly over meanings, there might be multiple legitimate classifications of violence.
The writer is a Supreme Court advocate. She thanks Anjolie Singh for her insights on international humanitarian law
